The purpose of this Web page is to inform the community of Barracuda Networks’ plans to defend itself and the free and open source software (FOSS) community from a patent threat by Trend Micro. In addition, we wanted to share the community’s strong support of Barracuda Networks’ efforts.
Barracuda Networks’ decision to take action comes after repeated requests from Trend Micro demanding Barracuda Networks remove ClamAV from its products or pay a patent license fee. ClamAV is a free and open source, GNU general public license (GNU GPL) toolkit that can be used on email gateways to scan messages for viruses. ClamAV is only one defense layer of the many integrated into Barracuda Networks’ products.
For more information, please read our press release.
We invite you to support Barracuda Networks in its efforts to protect free and open source software from unjust patent threats. Click here for more information on how to join this important cause.
Please read the tremendous and insightful article about the case by Groklaw that likens the situation to the previous SCO case against Red Hat. Ars Technica also takes an in-depth look at the situation. For more articles on the issue, please visit our Newsroom.
Summary of Allegations
Trend Micro alleges that Barracuda Networks and ClamAV infringe on Trend Micro’s U.S. Patent No. 5,623,600. Barracuda Networks believes that the patent is invalid due to prior art and further believes that neither its products nor the ClamAV software infringe the patent.
On Sept. 21, 2006, Trend Micro sent Barracuda Networks a letter regarding a license to Trend Micro’s ‘600 patent. After several discussions on paying a license for the patent, Trend Micro demanded Barracuda Networks either remove ClamAV from its products or pay a patent license fee. Barracuda Networks felt it had no choice other than to file for a declaratory judgment in early 2007 in U.S. Federal Court to invalidate Trend Micro’s ‘600 patent and end continued legal threats against Barracuda Networks for use of the free and open source ClamAV software.
Trend Micro subsequently responded to that declaratory action and more recently, Trend Micro filed a claim with the International Trade Commission (ITC). The ITC voted to investigate the claim in December 2007. Trend Micro’s ITC claim alleges that Barracuda Networks infringes on Trend Micro’s ‘600 patent, but effectively implies that anyone using the free and open source ClamAV software at the gateway infringes the patent.
The case in federal court and with the ITC is proceeding.
Selected Quotes from Trend Micro’s Initial and ITC Claims
From Trend Micro’s ITC Complaint
“…upon information and belief, Barracuda’s AV systems contain open source antivirus software, known as ClamAV, that is specifically designed to protect against computer viruses at the network gateway…. Further, upon information and belief, ClamAV software is written, at least in part, by ClamAV developer team members located in Europe and Australia. Thus, Barracuda imports software specifically designed to protect against viruses at the network gateway.”
“… If the data email does not contain a virus it is sent to the destination address. See e.g. [4] … ClamAV uses signature scanning to scanning files for a virus. See e.g. [5] load_database()” |
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From U.S. District Court Case: Trend Micro’s Disclosure of Asserted Claims
| “… The ClamAV software determines if the data is of a type likely to contain a virus. See e.g. [10] cli_magic_scandesc() … The ClamAV software will transmit the data from the server to the destination without performing the steps of determining whether the data contains a virus and performing a preset action, if the data is not of a type that is likely to contain a virus. Id” |  |
| “… ClamAV uses signature scanning to scanning files for a virus. See e.g. [5] load_database()” |  |
Prior Art
Trend Micro is seeking an interpretation of its ‘600 patent such that would give it exclusive control of gateway antivirus scanning. Scanning for viruses at the gateway is an obvious and common technique that is utilized by most businesses worldwide. Such an interpretation would mean that anyone, including the owners of the more than one million active ClamAV installations, could potentially be sued by Trend Micro.
Here for examples of prior art dating back to March 1995 for virus scanning:
Supporters
A broad number of free and open source software leaders and patent law experts support Barracuda Networks in its efforts to defend itself and the free and open source software community from a patent threat by Trend Micro. Here is a small sampling of the growing community support.
| “This attack is an example of the threat that software patents impose on all software developers: at any moment, you can get sued for using code with the author’s permission, or even for the code you wrote. Today the victim is ClamAV, but tomorrow it could be any program ... As a leader in the free software movement, I’m particularly concerned with the threat to free software, but custom software is also legitimate and deserves not to face this danger ... Companies that use software patents for aggression, as Trend Micro has done, are despicable predators – the lowest of the low. They deserve to be taught a lesson.” |
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Richard M. Stallman President, Free Software Foundation Originally quoted in “Richard M. Stallman calls Trend Micro a ‘despicable predator’” sidebar Linux.com, Jan. 29, 2008 |
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Justin Mason Vice President of the Apache Software Foundation Apache SpamAssassin |
| “Given these views, Moglen applauds Barracuda’s decision to publicize the case rather than to seek a private settlement, as others have done in the past. “Every time someone makes a separate, private peace with a patent holder,” he says, “That subtracts from the community’s ability to defend itself. A patent that has been licensed has a certain weight of gravitas that seems to attach to it. |
| “One of the things that I think is good here,” Moglen concludes, “Is to have an opportunity by support to express our gratitude to companies like Barracuda -- that is, companies that make commercial use of free software who are willing to take a stand and deal with a problem that affects us generally.” |
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Originally quoted in “Software patent case defendant seeks support of FOSS” Linux.com, Jan. 29, 2008 |
| “Collective defense from software patents is a shared responsibility for everyone in the free software ecosystem. We are grateful to see device manufacturers like Barracuda Networks take on this responsibility, and we will do what we can to help those who help free software resist such patent abuse.” |
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Eben Moglen Founding Director, Software Freedom Law Center an organization providing legal services to open source and free software developers |
| “Shame on Trend / Our patent system is the best in the world. But when it comes to software, its net effect seems to be to stifle innovation, not nurture it. That something as obvious as scanning a file traveling on a network can be patented is a mystery. To then use this ill-gotten patent to curb the use of products using open source code such as ClamAV is a shame. Perhaps now is the time for Congress to take a harder look at software IP legislation.” |
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Bob Walters CEO of Untangle |
| “The open source community has feared the role of software patents for some time, and this litigation is an example of why. If Trend Micro’s patent really does cover ClamAV, the open source community is in for a shock.” |
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Mark A. Lemley William H. Neukom Professor of Law, Stanford Law School Director, Stanford Program in Law, Science and Technology Counsel, Keker & Van Nest LLP |
| “I applaud Barracuda Networks for standing up and attacking this patent. I have no problem with companies asserting intellectual property rights on great inventions. But when a company offensively asserts claims that are obvious to anyone skilled in the art, those actions go over the line. |
| Patent litigation is expensive and from a pure economic point of view it would have been easier for Barracuda Networks to cave like every other company Trend Micro has contacted. I’m very pleased that not only hasn’t Barracuda Networks caved, but they have done an outstanding job in assembling a superb case against the Trend Micro patent.” |
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Executive of an anti-spam company Requested name be withheld to avoid being the next litigation target |
How You Can Help
U.S. Patent No. 5,623,600 is entitled “Virus Detection and Removal Apparatus For Computer Networks.” It was filed on September 26, 1995, and we are interested in all material, including software, code, publications or papers, patents, communications, other media or Web sites that relate to the technology described prior to the filing date. In particular, “prior art” showing antivirus scanning on a firewall or gateway is of interest. However, many of the claims do not require virus detection at a gateway; and therefore, any material that illustrates virus scanning on a file server is also of interest. Specific features of interest include the following:
- virus detection at an FTP proxy server
- use of an FTP daemon
- virus detection at an SMTP proxy server
- use of an SMTP daemon
- determining whether the data is of a type that is likely to contain a virus, and only determining whether that data contains a virus
- signature scanning
- file typing by comparing extensions
- determining whether email messages with multiple encoded portions (i.e., attachments) contain viruses by storing each encoded portion in a separate temporary file, decoding the encoded portions of the mail message to produce decoded portions and scanning each decoded portion for a virus
- email parsing
- only scanning email messages that have attachments
- performing a preset action if a virus is found, including, among other things, transferring the data unchanged, not transferring the data, storing the data with a new file name and alerting the recipient of the new file name, and transferring modified data.
Finally, we believe that a product called MIMESweeper 1.0 from a company called Clearswift, Authentium or Integralis anticipates several claims of the ‘600 patent. We have yet to locate a copy of this product and would appreciate anyone who has a copy sending it our way.
If you would like to submit prior art, please send your name, phone number, email address, general description or copy of the prior art to legal@barracuda.com.
Join The Cause
Thank you for your interest and ongoing support of Barracuda Networks’ efforts to protect ClamAV and other free and open source software from patent threats.
Barracuda Networks also welcomes your feedback on this issue on our user forum. If you would like to receive updates on the status of this issue, please provide the following information.